Judge bans the word rape from his courtroom.

61 posts / 0 new

Wed, 2007-09-12 20:47

Sean in Ottawa

I am amazed by the story even from a legal point of view.

A rape (like the example of murder above) has more than one element that must proven-- what happened in physical terms and whether there was consent-- a disposition of the victim. In order to establish this disposition the victim and any witnesses have to share both knowledge of the physical events and her disposition. I say what I think a few others are getting at here that it is not a fair trial if a person cannot use their own language and make their own assertions about not only what happened but if it was a rape or not.

As for the requirement to prove the description of events rather than make assertions about disposition one does not replace the other. So the fact that the witness/victim must explain what happened in detail is not in conflict with her right to also explain her disposition and make her allegations of what really happened.

One of the social functions of a trail is to face and confront the abuser. If the victim is denied control of her own characterization of the event then that is a further victimization and a denial of due process. And yes, victims need due process as much as the accused.

I agree with those who say the Judge is not fit to be a lawyer or any officer of a court (never mind a judge) if there is a lack of understanding about all this.

[ 12 September 2007: Message edited by: Sean in Ottawa ]

Thu, 2007-09-13 11:35

#53

jeff house

Well, from a legal point of view, you're wrong.

The idea that the victim/complainant is entitled to testify as she sees fit is completely unfounded in law.

Judges ROUTINELY instruct witnesses to state specifically the acts which the accused committed, and not conclusions.

"He raped me" is a statement of a conclusion. To see that this is so, imagine a witness on the stand who testified: "He committed treason". Obviously, that could not convince anyone, since there is no certainty that the witness even knows how treason is defined in law.

It is not very difficult for an honest witness to say what the accused actually DID; that is, "he grabbed me, he took off my clothes, etc."
It is up to the jury to decide whether it is rape or not.

Thu, 2007-09-13 16:12

#54

abnormal

jeff, last time I looked the judge was actually being sued for banning the word rape. I have no idea where this will go (although I'd be very surprised if the judge is still on the bench a year from now).

[url=http://www.firstamendmentcenter.org/news.aspx?id=19021]http://www.firsta...

And the judge's actions mean that the original accused will be tried again.

Thu, 2007-09-13 16:21

#55

ChicagoLoopDweller

What would be interesting, but would never, could never, and should never happen, would be if the trial judge had offered the victim the chance to exercise her first amendment rights on the condition that she agree to waive the protections afforded by rape shield laws and allow the defendant the first amendment right to say what he wants about the victim.

The first amendment cuts both ways.

Thu, 2007-09-13 16:23

#56

Sven

quote:

Originally posted by ChicagoLoopDweller:
[b]What would be interesting, but would never, could never, and should never happen, would be if the trial judge had offered the victim the chance to exercise her first amendment rights on the condition that she agree to waive the protections afforded by rape shield laws and allow the defendant the first amendment right to say what he wants about the victim.
The first amendment cuts both ways.[/b]

I don't think that would be "interesting" at all.

Thu, 2007-09-13 17:00

#57

ChicagoLoopDweller

Of course it wouldn't. It would be tragic and would result in a grosteque display whereby the victim becomes the defendant. But it would drive home the point that the law is one great big compromise. There is compromise between the first amendment and a victims right not to be put on trial. Likewise there is compromise between a victim being able to tell her story, and the courts ability to limit this testimony so as not to unduly prejudice the defendant and confuse the jury.

Thu, 2007-09-13 17:41

#58

remind

quote:

Originally posted by ChicagoLoopDweller:
[b]What would be interesting, but would never, could never, and should never happen, would be if the trial judge had offered the victim the chance to exercise her first amendment rights on the condition that she agree to waive the protections afforded by rape shield laws and allow the defendant the first amendment right to say what he wants about the victim.
The first amendment cuts both ways.[/b]

What is your point with this nonsensical post and indeed your response to Sven's?

The reality is, every time a woman goes to court when she was raped she, the victim, is put on trial.

What is your point about the defendant saying what he wants about the victim? He/they do, they say it was "consensual", or "did not happen" what else do you think they should be saying?

Thu, 2007-09-13 18:25

#59

Sean in Ottawa

quote:

Originally posted by jeff house:
[b]Well, from a legal point of view, you're wrong.
The idea that the victim/complainant is entitled to testify as she sees fit is completely unfounded in law.
Judges ROUTINELY instruct witnesses to state specifically the acts which the accused committed, and not conclusions.
"He raped me" is a statement of a conclusion. To see that this is so, imagine a witness on the stand who testified: "He committed treason". Obviously, that could not convince anyone, since there is no certainty that the witness even knows how treason is defined in law.
It is not very difficult for an honest witness to say what the accused actually DID; that is, "he grabbed me, he took off my clothes, etc."
It is up to the jury to decide whether it is rape or not.[/b]

If the victim is called (and you are right that they do not have to be-- although practically they are a witness) then they can indeed characterize facts based on thier language for which they have DIRECT knowledge. I would argue that testifying that it was a rape is saying that consent was not given-- if it is the victim testifying then this should be fair ball-- another witness could not know that and therefore should not use the word. I have a great deal of difficulty seeing why a victim cannot use that language and it has been used before so the precedent of stopping a victim from saying that is unusual. I'll grant that this of course cannot extend to those who would not know. As well there is a practice to give considerable latitude to witnesses to use their own language except where there is a suggestion of something they cannot know -- like the internal thought process of another person.

Thu, 2007-09-13 18:39

#60

1234567

I wonder if he made the cops change the language of their report. Those are all words that they use.

Sheesh, the things people do to get publicity.

Tue, 2007-10-02 07:39

#61

jrose

[url=http://www.law.com/jsp/article.jsp?id=1190797379020]Another update:[/url]

quote:

A Nebraska federal judge dismissed a lawsuit against a state judge who barred anyone from saying "rape" or "victim" during a criminal trial, ruling Tuesday that the accuser failed to prove that he should intervene.
U.S. District Judge Richard Kopf also determined Tory Bowen didn't provide enough evidence to show her lawsuit against Lancaster County District Judge Jeffre Cheuvront wasn't frivolous.
Bowen, 24, filed a complaint earlier this month against Cheuvront, saying he violated her free speech rights by barring the words, along with the phrase "sexual assault," from the trial of Pamir Safi last November. Cheuvront said he banned the language because he was concerned about Safi's right to a fair trial.
Kopf said he could not imagine a jury being swayed because a woman uses the word "raped" instead of "some tortured equivalent for the word," but he said that wasn't his decision to make.
Earlier this month, Kopf said he was concerned that the purpose of Bowen's lawsuit was to force Cheuvront to recuse himself from the criminal case.
"Make no mistake ... the plaintiff wants me to jump right into the middle of the pending state criminal case and the upcoming third trial," Kopf wrote Tuesday.
Safi, 34, is charged with first-degree sexual assault. He said he and Bowen met at a bar and had consensual sex in October 2004. She said she was too intoxicated to give consent.
Bowen said the ban hindered her testimony during the trial because she had to pause to make sure she didn't use the barred words.
Cheuvront declared a mistrial after the jury deadlocked 7-5. He declared a second mistrial in July during jury selection, citing news coverage and public protests on behalf of Bowen. Prosecutors have said they plan to seek a third trial.
A message left Tuesday for Bowen's attorney, Wendy Murphy, wasn't immediately returned. A message left for Cheuvront's bailiff wasn't returned. Judicial guidelines typically bar judges from commenting on current cases.
The Associated Press usually does not identify accusers in sex-assault cases, but Bowen has allowed her name to be used publicly because of the issue over the judge's language restrictions.

Judge bans the word rape from his courtroom.

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